Scottish Court of Session Decisions

This was a petition at the instance of A. F. C. R. Bowman Ballantine, Esq., heir of entail in possession of the estates of Ashgrove and Castlehill, Ayrshire, for authority to sell part (extending to 15 acres) of Ashgrove. The petition was founded on sec. 19 of the Entail (Scotland) Act 1882, which provides that “It shall be lawful for the heir of entail in possession of any entailed estate …. to apply to the Court for an order of sale of the estate, or part of it.” The petitioner had offered to sell the portion of Ashgrove which he here asked authority to sell to the trustees of the late John M'Gavin, whose object it was to make a public park for the adjoining town of Kilwinning. The offer had been accepted. The offer contained, inter alia, a condition undertaken by the petitioner that, “for the purpose of preserving the amenity of the park, clauses will be inserted in the disposition in favour of the purchasers preventing the erection of any works or buildings, except villas, cottages, or other similar Self-contained flatted dwelling-houses, or tenements of flatted dwelling-houses, each dwelling-house having not less than three rooms and kitchen, on the adjoining land, within fifty yards of the ground proposed to be sold—extending to fifteen acres—which might be injurious to the park.” The price was to be £3100.

The Lord Ordinary remitted the petition for inquiry and report to Mr James Hope of East Barns, and to Mr J. P. Wright, W.S. The former reported that the value of the ground was £2700, and that the sale was a very advantageous one, the purpose of it being one which would increase the value of the estate by encouraging feuing. After a report from Mr Wright, the Lord Ordinary granted leave to sell the ground as craved, and in respect of a minute for the petitioner and succeeding heirs interested, to whom intimation had been duly made, allowed the sale to be by private bargain, and remitted to Mr Wright to adjust the disposition. Mr Wright made a second report setting forth that in the draft disposition there was a clause by which it was proposed to create upon the adjoining entailed lands a real burden or servitude in favour of the portion sold, against alienation, except under certain restrictions in regard to the class of buildings which might be erected; but that, on the ground that the sale to be made in virtue of the interlocutor could not extend to lands outside the boundary of the portion mentioned in the petition, he had struck out the clause. He further reported that, as the creation of such a servitude was merely a limited sale, he was of opinion that such a creation was competent under the Entail Act of 1882, and might have been granted if the petition had craved authority to sell such a right. He could not, however, assent to the view of the parties that such a servitude could be created by introducing a clause in the disposition of the lands authorised to be sold. He suggested that the petitioner should amend the petition so as to crave leave to include in the sale a right of servitude over the lands retained by him in favour of the portion sold, of the character desired by the parties.

The petitioner applied for leave to amend the petition as suggested, to the effect of craving leave to sell a right of servitude over the fifty yards immediately contiguous to the portion sold in terms of the petitioner's offer and the purchasers' acceptance.

The Lord Ordinary allowed the proposed amendment, and appointed it to be intimated to the curator ad litem for the next heir. Such intimation having been duly made, he reported the petition with this note:—

“ note.—The point raised by the reporter appears to be proper for the consideration of the Court. There seems to be no doubt that in the circumstances it would be expedient to sanction the clause in question if it be authorised by the statute; and there is great force in the petitioner's contention that the Act relaxes the fetters so far as to enable the heir of entail to sell on the same terms as a fee-simple proprietor, provided the prescribed procedure is duly observed; that the proposed condition is one of the ordinary incidents of such a transaction as the petitioner contemplates; that in many estates similarly situated a beneficial sale could not be effected unless the purchaser could be protected by similar restrictions; and that the power to create such restrictions as subsidiary to a sale is implied in the power to sell, although not expressed in terms. The point is one of great importance, and as it is also a novel point, I have thought it right to report it.

“The reporter's objection that the petition contained no notice of the proposed burden appeared to me to be well founded; but that difficulty may probably be held to have been obviated by the amendment which has been allowed, and which has now been intimated to the curator ad litem.”

At advising—